Tangled Web of Lies: U.S. Army Corps' DAPL Historic Properties "Review"

Cannonball River in Sioux Treaty territory, pictured by Gabe Galanda

"Oh, what a tangled web we weave! When we first practice to deceive." --Sir Walter Scott

The U.S. Army Corps of Engineers' "review" of historic properties in ancestral Sioux Treaty lands, associated with the "Dakota" Access Pipeline (DAPL) project, is fundamentally dishonest---especially considering the easement the Corps must still issue to allow drilling underneath Lake Oahe and the Missouri River pursuant to the federal Rivers and Harbors Act of 1899. 

In fact, the Corps have woven together a tangled web of lies, and are telling those lies to the Great Sioux Peoples and the entire country.

Under Section 106 of the National Historic Preservation Act, the Corps must take into account the effects of its undertaking---here, the Corps' "grant [of] an easement for the DAPL project to be placed under Lake Oahe"---on historic and cultural properties, including Sioux sacred sites.

Lake Oahe sits at the confluence of the Cannonball River into the Missouri River, and constitutes reserved Sioux Treaty territory; in fact, the eastern boundary of Ft. Laramie Treaty lands. And as the Standing Rock Sioux Tribe previously advised the Corps, according to Corps' own words:  

At the Cannonball Ranch, there are burials of notable Standing Rock memebers [sic] and their families including Maltida Galpin, Alma Parken, Louisa Degray Van Solen, and Charles Picotte, among whom are signatories on the Treaty of Fort Laramie. There is also an unmarked grave of Mrs. Harrison at the mouth of the Cannonball and Missouri Rivers.

The Corps ostensibly reviewed the effects that Enbridge Energy Partners' horizontal directional drilling under Lake Oahe and the Missouri River would have on such Standing Rock Sioux historic and cultural properties, concluding:

there will be no direct or indirect effects to the Standing Rock Sioux tribe.  This includes a lack of impact to its lands, cultural artifacts, water quality or quantity, treaty hunting and fishing rights, environmental quality, or socio-economic status.

That conclusion comes as no surprise when one ascertains the Corps' identified area of potential effect (APE), which generally means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties.

For DAPL, the Corps' so-called APE was only those bore holes on both sides of Lake Oahe and Missouri River that would be needed to run the DAPL underneath the lake.  In a 1,261-page document titled "Mitigated Finding of No Significant Impact," the Corps admits: 

The APE for this project will not include construction of any portion of the pipeline that extends past the bore pit locations.

Among other geographic areas, the APE does not even include the lands "under Lake Oahe" that will be subject to horizontal directional drilling so that DAPL can run beneath the Missouri River---i.e., lands "under Lake Oahe" and the Missouri River that require a Corps easement for drilling.

This is an exceedingly narrow---and illegal---APE.  Indeed, how can the Corps, in good faith, justify needing to issue a federal easement for drilling an oil pipeline "under Lake Oahe" and Missouri River, while concluding that the APE is simply boring pits on each side of the Lake and River?  

They can't.  The Corps are lying to themselves, to the Sioux Peoples, and to us all.

For sake of the truth, the APE includes---and must, via the U.S. District Court or any higher court, still include---Lake Oahe and the Missouri River, as well as the vast Sioux historic and cultural properties that surround DAPL's proposed crossing of those sacred waters.  

Until then, the Corps' 1,261-page Section 106 "review" will remain fundamentally dishonest, and constitute the latest set of bold-faced lies told by the United States to the Great Sioux Peoples.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California. He opposes the Dakota Access Pipeline (DAPL).

Standing Rock, Sacred Stone Camp, DAPL: Sacred Treaty Lands & Waters

My legal takeaway from Standing Rock and the Sacred Stone Camp:

Those sacred lands and the sacred lands astride the Missouri River in rightful dispute, are reserved ancestral Sioux Treaty territory.

The 1868 Treaty of Ft. Laramie reserves ancestral lands "commencing on the east bank of the Missouri river where the 46th parallel of north latitude crosses the same, thence along low-water mark down said east bank..."

Without getting into the technicalities of any Sioux Treaty land diminishment vis-a-vis the 1851 Ft. Laramie Treaty, the Standing Rock Sioux Reservation sits along the west bank of the Missouri River, as does the Camp.

The Treaty does not define reserved Sioux Treaty territory as to the west bank, or the low-water mark down said west bank, of the Missouri River.

Missouri River, at Sacred Stone Camp, on Tuesday, August 30 (photo by Gabe Galanda)

The Treaty defines Sioux Treaty territory as running across the Missouri River, from west bank to east bank---including the low-water mark down said east bank---i.e., including the lands astride the Missouri River.

How then can there not be a legitimate claim to protect the water that runs through reserved ancestral Sioux Treaty territory---water that has demarcated the eastern Treaty boundary for 150 years---water that has run through Sioux lands since time immemorial?

It is my hope that the #NoDAPL narrative begins to include the fact that these are reserved ancestral Sioux Treaty lands and waters.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California. He opposes the Dakota Access Pipeline (DAPL).

Bree Black Horse, Eric Eberhard Named Advisors to Seattle U American Indian Law Journal

The Editorial Board of Seattle University School of Law’s American Indian Law Journal has appointed Bree Black Horse and Professor Eric Eberhard as External Advisors.

Bree Black Horse and Eric Eberhard, at center

The Journal is an academic collaboration between students, faculty, and practitioners designed to assist those working in the field of Indian law and serving tribal clients, by providing them timely and relevant resources and analysis.  The Journal, which employs an innovative and publicly available online format and will soon appear on the Digital Commons, exemplifies Seattle University’s commitment to social justice.   

Eric Eberhard served as one of the Journal’s founding faculty advisors while he taught advanced Indian law courses as a Distinguished Practitioner in Residence at Seattle University School of Law.  Professor Eberhard’s commitment to the Journal was instrumental in its formative years and the seven years he dedicated to this endeavor ensured the Journal’s provisional status and eventual accreditation.  In addition to the contributions Professor Eberhard made as a law professor at Seattle University, he provided individual guidance to each of the over fifty student members of the Journal since its founding in 2011 as a Faculty Advisor.

Bree Black Horse is a 2013 graduate of Seattle University School of Law and a recipient of the Douglas R. Nash Native American Law Scholarship.  While at Seattle University, Bree served as a Co-founder, Managing Editor and Editor-in-Chief of the Journal.  The Journal published Bree’s student article regarding Tribal Payday Lending in its Spring 2013 issue.

The Journal published its first issue in 2012, which featured Anthony Broadman’s article Know Your Enemy: Local Taxation and Tax Agreements in Indian County.    After Seattle University School of Law granted the Journal provisional status in 2011, the Journal was accredited in 2015.  The Journal will publish its tenth issue in this Fall’s issue. 

Eric and Bree will personally welcome the Journal’s eleventh generation of students at orientation later this month.

Bree Black Horse is an Associate in the Seattle office and a former Clerk for the U.S. District Court for the District of Montana.  She is an enrolled citizen of the Seminole Nation of Oklahoma.  Bree can be reach at (206) 735 – 0448 orbree@galandabroadman.com. 

Gabe Galanda Named Among America's Best Lawyers for 11th Straight Year

Gabe Galanda has been selected by his peers for inclusion in the 2017 edition of The Best Lawyers in America® in the areas of Gaming Law and Native American Law, for the 11th straight year.  He has now been selected to The Best Lawyers in America® every year since 2007.

Gabe’s practice focuses on complex, multi-party litigation, business controversy, and crisis management, representing tribal governments, businesses and members.

He is skilled at defending tribes and tribal enterprises from legal attacks by local, state and federal government, and representing plaintiffs and defendants in catastrophic injury lawsuits.

Gabe handles Indian civil rights controversies for tribal members, particularly those involving Indian citizenship rights, as well.  He also frequently represents tribal families in federal civil rights litigation against police officers and jailers for the wrongful death of Natives and inmates.

The Best Lawyers in America® is regarded as the definitive guide to legal excellence in the United States. Gabe’s selection was based on a peer-review survey, which all told comprises more than 4.9 million confidential evaluations by top attorneys throughout the country.

Gabriel S. Galanda is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe is a descendant of the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Tribes of Northern California.

Today’s Lewis v. Clarke: A Journey Towards Tribal Sovereign Immunity Abrogation?

By Joe Sexton

In June, personal injury plaintiffs in Lewis v. Clarke, a case arising out of Connecticut state courts, filed a petition for a writ of certiorari with the United States Supreme Court.  The petition seeks relief from an opinion of the Connecticut Supreme Court upholding tribal sovereign immunity. 

The facts in Lewis include a garden-variety personal injury tort lawsuit arising from a car accident.  But what makes the case important to Indian Country is the question posed to the Supreme Court if it decides to hear the case: whether tribal employees can be individually sued and held personally liable for torts committed within the scope of their employment. 

The plaintiffs transparently play to the four sitting Justices, who according to the 4-4 Dollar General split, disfavor tribal sovereignty, in hope that those four will call the following bluff made by Justice Elena Kagan in Bay Mills:

We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. 

The Justices now have their chance to deal with that fact pattern and, notwithstanding the bullet dodged in Bay Mills, Indian Country should be concerned.

The defendant in the case, Clarke, was a tribal employee driving a limousine for a tribal casino.  Plaintiffs, Brian and Michelle Lewis, claimed defendant rear-ended them while driving the limo.  As a result of Clarke’s alleged negligence the plaintiffs claimed injuries for which they brought suit. 

In their complaint, plaintiffs named both Clarke and the tribal government entity for which he worked, the Mohegan Tribal Gaming Authority.  Before defendant filed his motion to dismiss, however, in November 2013, plaintiffs cleverly withdrew all claims against that entity, leaving defendant Clarke as the sole defendant sued in his individual capacity, i.e., not in his official capacity as an employee of the tribal governmental entity.

Plaintiffs claimed that defendant is not entitled to the protection of tribal sovereign immunity because defendant was sued in his individual capacity, and the relief plaintiffs sought in the action was relief from defendant personally, not from his tribal employer.  The Connecticut trial court agreed and denied defendant’s motion to dismiss.  Defendant appealed and the Connecticut high court overturned the trial court’s ruling. 

The principal authority the plaintiffs relied on is the Ninth Circuit’s decision in Maxwell v. San Diego, 708 F.3d 1075 (9th Cir. 2013).  In Maxwell, family members brought a claim against paramedics employed by a tribal fire department, alleging they delayed provision of medical treatment for their family member, a shooting victim, and thus were grossly negligent. 

The Ninth Circuit concluded that, among other things, the suit was not barred by sovereign immunity because plaintiffs sued the paramedics in their individual capacities for money damages.  As such, “[a]ny damages will come from [the paramedics’] own pockets, not the tribal treasury.”  Id. at 1089.

The Connecticut Supreme Court declined to follow Maxwell in Lewis, noting one key distinguishing factor:

The fact that the allegations against the plaintiffs in Maxwell involved claims of gross negligence makes the Ninth Circuit’s holding in that case distinguishable from the present case.      

As the Connecticut Supreme Court observed, gross negligence claims are generally “deemed to be outside the scope of employment and, therefore, not subject to sovereign immunity.”[1]

As noted, the U.S. Supreme Court, perhaps with baited breath, has now been asked to review this Connecticut case.  If it grants the appellants’ petition, the Court will be set to decide whether to extend the Ninth Circuit’s decision in Maxwell nationally.

In particular, the High Court would ask and answer whether gross negligence claims, or simpler or lesser negligence claims, may be brought against tribal employees sued in their individual capacity for actions and omissions carried out in the scope of their employment—notwithstanding tribal sovereign immunity.

The brief in opposition to the petition for a writ of certiorari may be found here.  No decision from the U.S. Supreme Court on the petition has yet been issued. 

If the Supreme Court decides to hear the case, the consequences for Indian Country could be far-reaching.  At least four Justices may be poised to subject tribal employees across the country to lawsuits in which damages are sought against them personally, based on claims of mere negligence for their actions taken during the course of their employment.

The latest Lewis v. Clarke journey, this time towards the U.S. Supreme Court, is a situation Indian Country jurists will want to keep on their radar. 

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.

[1] Citing Gedrich v. Dept. of Family Services, 282 F. Supp. 2d 439, 474–75 (E.D. Va. 2003); and Young v. Mount Ranier, 238 F.3d 567, 578 (4th Cir. 2001).

AUTO Strikes Back

By Anthony Broadman

The Washington gas station trade group AUTO launched its latest salvo against the relationship between the State of Washington and its neighbor tribes last week.

AUTO sued Friends of Bob Ferguson (FBC), a PAC supporting the campaign of the Washington State Attorney General, alleging that FBC’s acceptance of tribal campaign contributions is illegal under state law.  The Complaint is available via Turtle Talk here.

As is usual with AUTO’s attacks, the suit raises core questions about how Washington tribes' role in Washington state government. Seeking a full accounting of all tribal funds contributed to FBC, AUTO’s suit, which follows similar efforts in administrative rulemaking, strikes at the heart of tribes’ involvement in state political campaign activity. The suit comes amidst revelations about Tribes' political contributions to the DNC as part of a recent email hack/wiki leaks release.  

Washington tribes are no doubt indispensible (and in theory immune) to answering that question.  AUTO is building on its mind-boggling victory in AUTO I (2012), in which the state supreme court somehow held that Washington Tribes were not indispensible to a suit over state-tribal fuel compacts.  

And if tribal contributions to FBC violate the Washington Fair Campaign Practices Act, tribes would have profound free speech limitations, under a Citizens United theory.  AUTO’s latest remains one to watch for Washington tribes and state politicians who align with tribes to help solve Washington’s problems.

Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.

Honoring An Indian's Right to Counsel

Nooksack Tribal Court

The U.S. Supreme Court's ruling in U.S. v. Bryant and chicanery at places like Nooksack have cast a bright light on an Indian's right to counsel---both criminal and civil---in Indian Country.

As the Nooksack Court of Appeals has proclaimed, an Indian's "right to representation is crucial." Roberts v. Kelly, 12 NICS App. 33 (Nooksack Ct. App. 2014). Indeed, as the U.S. Supreme Court explains, "the right to be heard, in many cases, would be to little avail if it did not comprehend the right to be heard by counsel."  Id. (quoting Goldberg v. Kelly, 397 U.S. 254, 270 (1970)).

Still, as we see in Bryant, there is no guaranteed right to criminal counsel in Tribal Courts.  That right may eventually attach throughout Indian Country via federal laws like the TLOA and VAWA Reauthorization Act, but there is no such 6th Amendment-like right to counsel in Tribal Courts.

Bryant has been rightly criticized by tribal legal scholars insofar as uncounseled convictions obtained in tribal courts can be used to "single out Indians for conviction and imprisonment"--not to mention unduly long sentences--in federal court.  They "mourn" for Indians "the tragic loss of the most basic constitutional protection against unjust prosecution by the federal government."

That end result of Bryant should be unacceptable to tribes.  Tribes can be both tough on reservation crime, especially DV, while protecting an Indian from unjust prosecution or excessive imprisonment. Those two values-based tribal correctional goals are not mutually exclusive.

On the civil side, many tribal codes assure tribal court litigants the right to counsel of their choosing and at their own expense. More generally, no government should, as a matter of due process, deny civil litigants that right.  Turner v. Rogers, 131 S.Ct. 2507, 2518 (2011).

Unfortunately, the ploy du jour of "tribal" attorneys in intra-tribal disputes is to cause the denial of an Indian or Indian cohort's right to civil counsel. Whether through capricious tribal business licensure enforcement, civil suits, or disbarment or banishment actions against opposing counsel, the desired outcome is the same: deprivation of the right to Indian civil representation.

This result should also be unacceptable to tribes---all tribes. That is because such gamesmanship, and resulting Indian civil and human rights violations, jeopardizes the sovereignty of all tribes.

For the last 35 years, the U.S. Supreme Court has consistently expressed great skepticism about the integrity of Tribal Courts. Bryant, which was decided narrowly on ICRA grounds, did little to change that reality; consider the even more recent 4-4 split in Dollar General.

Until tribal governments guarantee and honor an individual's right to counsel---both criminal and civil---tribal courts will be viewed and treated as second-class courts. Let's counsel for counsel.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

National Historic Trauma Conference Featured "Citizenship, Disenrollment and Trauma"

Deron Marquez, Ph.D., former Chairman of the San Manuel Band of Mission Indians, delivered the keynote address at a powerful inter-tribal conference, "Historic Trauma: Healing the Future."

The conference was held in Southern California, where disenrollment has always burned the hottest. As Ramona Band of Cahuilla Indians Chairman Joseph Hamilton explained recently:

In Southern California, where my tribe calls home, disenrollment is common, in part because of big gaming revenues and internal power struggles. It is also a symptom of the breakdown of traditional tribal power structures. Simply put, some tribal leaders listen to lawyers instead of elders.

The conference location---in the middle of So. Cal. Indian Country---was itself powerful.

The conference was hosted by the Riverside-San Bernadino-Riverside County Health, which dovetails beautifully with the recent Resolution and published studies by the Association of American Indian Physicians.

Last year, the Association disavowed disenrollment and the resulting loss of cultural identity, which "leads to grief, depression, anxiety and more serious mental health problems [for] American Indian and Alaska Native people."

The tide continues to rise against disenrollment.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

Unwarranted: Violating the Federal Indian Arts & Crafts Act

As you can see from this image from a 2013 Settlement Agreement with the United States, Pendleton Woolen Mills is a known tribal cultural appropriator---and federal law violator:

As I recently explained through the Indian Country Today Media Network:

Pendleton Woolen Mills, a 100% non-Indian owned company that currently markets 290 products as “Native American,” including 233 as “Native American Inspired.”  But with the exception of 15 of 120 wool blankets, Pendleton’s products appear to be non-Indian made.

Having been dinged by the Federal Government for violation of the federal Indian Arts and Crafts Act, Pendleton now advertises its non-Indian made products as "Native American Inspired." But that untruthful advertising tagline, too, violates the Act.  25 U.S.C. 305e; 25 C.F.R. 309(24)(2). 

Problematically, Pendleton does so with the blessing of our Trustee, the United States:

This is not moral or just, on multiple levels.  This is unwarranted.  Nor is it what Congress has intended since 1935.  It is time to reinvigorate the Indian Arts and Crafts Act.

Gabe Galanda is the managing lawyer of Galanda Broadman, PLLC, an American Indian-owned law firm with office in Seattle and Yakima, Washington and Bend, Oregon.  Gabe descends from the Nomlaki and Concow Tribes, belonging to the Round Valley Indian Confederation.

Gabe Galanda Quoted by Wall Street Journal Regarding Tribal Indigent Defense Counsel

Yesterday the Wall Street Journal quoted Gabe Galanda in "High Court Finds No Federal Right to Counsel in Indian Territories":

Unless the defendant is a non-Indian or is facing more than a year in jail [in keeping with the 2013 Violence Against Women Act Reauthorization and the Tribal Law and Order Act of 2010, respectively], there is no federally mandated right to counsel, but many tribes do provide counsel to indigent defendants as a matter of tribal law, said Gabriel Galanda,  Seattle attorney who practices in Indian country.

The VAWA Reauthorization expanded a tribe's ability to assert jurisdiction over non-Indians in certain circumstances, but the defendant must be provided counsel.

The Tribal Law and Order Act changed the maximum sentence a tribe may impose from one year to three years, but the expanded sentencing authority applies only when a defendant has been provided "the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution."